Legal Briefs: Who's a cop?

The Merit Systems Protection Board has decided that several groups of Navy employees fit the definition of federal law enforcement officer, so they can retire earlier with fewer years of service than other federal employees.

Law enforcement officers can retire from the federal government with full retirement benefits at age 50 with 20 years of service. In contrast, regular civil servants must wait to retire until they are age 55 with 30 years of service, age 60 with 20 years of service, or age 62 with five years of service.

But not all employees who think they are law enforcement officers are treated as such for the purposes of retirement. In two recent cases, police officers and detectives at the Norfolk, Va., Naval Base convinced MSPB that they are entitled to law enforcement retirement benefits. But two investigators at the Norfolk Naval Shipyard in Portsmouth, Va., were unable to convince MSPB that they fit the definition of law enforcement officers.

In its rulings, MSPB said a federal employee meets the definition of law enforcement officer if he or she:

• Has frequent direct contact with criminal suspects.
• Is authorized to carry a firearm.
• Interrogates witnesses and suspects, giving Miranda warnings when appropriate.
• Works for long periods without a break.
• Is on call 24 hours a day.
• Is required to maintain a level of physical fitness.

April 15, 1999 MSPB cases: Stearn et. al. vs. Navy, DC-0831-97-0869-I-1; Houck et. al. vs. Navy, DC-0842-97-0891-I-1; Bremby et. al. vs. Navy, DC-0831-97-0806-I-1

Commuter Cash

Leon Rodgers Jr., an Army psychologist and social worker, attempted to get reimbursed $184.14 for commuting expenses to a hospital emergency room when he was on call.

The Army asked the General Services Board of Contract Appeals to dismiss Rodgers' claim because he had not followed procedure and first submitted his claim to them. Instead, the board dismissed the Army's request, saying Rodgers would have been wasting his time by asking the Army to reimburse him.

The board agreed with Rodgers that he stood no chance of getting reimbursed by the Army; therefore, he had to take his case to a higher authority. The board then turned around and denied Rodgers' request itself, deciding that travel between an employees' home and permanent duty station is not reimbursable.

Lesson: Sometimes appealing to a higher authority just doesn't help.

In the matter of Leon Rodgers Jr., General Services Board of Contract Appeals, Case No. 14678-TRAV, March 29, 1999

Every Penny Counts

When postal worker Mark A. Haines was laid off, he claimed he was discriminated against because of a disability-carpal tunnel syndrome. An Equal Employment Opportunity Commission judge agreed and ordered the agency to offer him back pay. The agency cut Haines a check for $52,723.04 in back pay and interest. But Haines appealed to the EEOC, saying the check was not correctly calculated.

USPS had deducted the income Haines had received through military reserve duty and unemployment compensation. The EEOC ruled that Haines would have received the reserve money even if he had remained employed at USPS and found the agency at fault for the unemployment deduction as well. USPS also used the wrong rate when calculating the interest on Haines back pay, EEOC ruled.

Lesson: Bean counters beware-don't assume someone won't notice if their back pay check comes up a little short.

Mark A. Haines v. Henderson, Postmaster General, U.S. Postal Service, EEOC, 99 FEOR 1132, March 16, 1999.

Bargaining Battle

In a significant case affecting both labor-management relations and outsourcing, the Federal Labor Relations Authority in November ruled that agencies don't have to negotiate with unions before they contract out jobs.

In section 7106(b)(1) of federal labor-management law, a set of "management rights" is listed (including the way an agency performs its work), which agencies can decide whether to put on the bargaining table. After the General Services Administration agreed to bargain over so-called (b)(1) issues, the union asked the agency to agree not to contract out jobs without negotiating with the union. The agency refused.

"Proposals concerning contracting out do not relate to the way in which an agency performs its work or the tools or devices that may be used in accomplishing it," the Federal Labor Relations Authority said in its ruling. Therefore, the FLRA ruled, contracting out is not a (b)(1) issue and the agency doesn't have to negotiate with the union before outsourcing.

Lesson: Contracting out is management's business.

GSA vs. AFGE, Council 235, 0-AR-3010, Nov. 30, 1998, 54 FLRA No. 136